MEMORANDUM OF DECISION AND ORDER
The plaintiff, a homosexual man and a former Nassau County
police officer, claims that his fellow police officers and
supervisors embarked on a vicious campaign of harassment against
him because of his sexual orientation, in violation of
42 U.S.C. § 1983 and 1985. During a three-week jury trial, the
plaintiff testified that approximately a year after he joined the
police force in 1986, other officers learned he was gay and over
a nine-year period, tormented him with pornographic cartoons and
photographs, anti-gay remarks, and barbaric "pranks." The
plaintiff further testified that his supervisors at the police
department knew of the harassment but did nothing to stop it, and
that some supervisors even joined in the harassment. The jury
awarded him the total sum of $380,000 in compensatory and
This opinion embodies the Court's oral decision, which it
rendered off-the-bench with respect to the following: (1) all of
the defendants' pre-verdict motions for judgment as a matter of
law as to liability under Federal Rule of Civil Procedure
("Fed.R.Civ.P.") 50; (2) the defendant Ryan's post-verdict motion
for judgment as a matter of law as to liability; and (3) all of
the defendants' post-verdict motions to reduce the $250,000
emotional distress component of the jury award on the ground that
it is excessive.
While this opinion addresses several issues, the central
question confronting the Court is whether government employees
who are homosexual may be singled out for discrimination and
abuse in the workplace because of their sexual orientation. In
the Court's view, the United States Constitution and the
provisions of 42 U.S.C. § 1983, combined with logic, common sense
and fairness dictate the answer: individuals have a
constitutional right under the Equal Protection Clause to be free
from sexual orientation discrimination causing a hostile work
environment in public employment.
In setting forth the salient facts of this case, the Court
views the evidence in a light most favorable to the plaintiff,
and grants him every reasonable inference that the jury might
have drawn in his favor (see
Hannex Corp. v. GMI, Inc., 140 F.3d 194, 203 [2d Cir. 1998]
[quotation omitted]), as is required when deciding the
defendants' Rule 50 motions for judgment as a matter of law
dismissing the complaint.
The plaintiff, James M. Quinn ("Quinn" or the "plaintiff"), a
former Nassau County Police Officer, initiated this action under
42 U.S.C. § 1983 and 1985 against the Nassau County Police
Department (the "Police Department"), Nassau County Police
Commissioner Donald Kane ("Kane" or the "Commissioner"), his
former supervisors Lieutenant Edward Gonzalez ("Gonzalez"),
Deputy Chief Daniel Lishansky ("Lishansky"), Sergeant John Ryan
("Ryan"), Lieutenant Joseph Allen ("Allen"), and his former
co-worker, Police Officer Phillip Rice ("Rice").
Quinn began working as a police officer for the Nassau County
Police Department in 1986. Quinn testified that he learned to
keep his sexual orientation to himself during his first days of
training at the Police Academy, after his supervisors "snickered"
when discussing homosexuals during a "sensitivity training"
workshop. From then on, Quinn vowed to keep his sexual
orientation hidden from his colleagues.
However, his secret was revealed on July 4, 1987, when police
officers from the First Precinct, where Quinn was assigned,
arrested an assistant district attorney for engaging in
homosexual sex in public. The assistant district attorney told
the arresting officers that Quinn, too, was gay. Following this
revelation, and until he left the force in 1996, Quinn testified
that he was ridiculed, humiliated, abused and singled-out because
of his sexual orientation.
For example, fellow officers regularly and frequently posted
cartoons about Quinn from the time he was unwillingly "outed"
through January 1995, when he was transferred to another
precinct. At least 19 of these cartoons were put into evidence at
the trial. In the cartoons, Quinn is depicted and labeled a
homosexual, a child-molester, a transvestite and a sadomasochist.
On repeated occasions, Quinn found such cartoons slipped into the
pages of the Police Car Book, a book which the officers
maintained in the patrol cars for the purpose of leaving official
messages and advice for their colleagues.
These cartoons were posted prominently on the bulletin board
located in the "32 Room," which many witnesses described as the
central hub of the First Precinct. At trial, defendant Rice
admitted that he created many of these cartoons. In Rice's
opinion, the cartoons were just "silly stuff" he created to try
and relieve the "stress and tension" of being a police officer.
Rice attempted to defend himself by explaining that he treated
everyone unfairly, and that "everyone" was made "fun of" on the
32 Room bulletin board.
In addition to the cartoons, Quinn testified about other
anti-gay incidents at the First Precinct. Fellow officers hid his
uniform and equipment. His colleagues put rocks in the hub caps
of his police car so that criminals would hear his noisy
approach. On one occasion, Quinn found a night stick in his
patrol car with the words "P.O. Quinn's dildo" carved into the
Quinn testified that his supervising officers were aware of
this harassment, ignored it, and refused to take any action to
discourage future occurrences. Rice supported Quinn's testimony
in this respect, and told the jury that no supervisor ever asked
him to stop making the cartoons about Quinn or to remove these
items from the 32 Room bulletin board, even though supervisors
"probably" saw them and laughed at them. Rice agreed that his
cartoons about Quinn were an accepted practice at the precinct.
Some of the supervisors admitted that they saw these cartoons
in open view in the precinct and Police Car Books, and did
nothing about them. Specifically, Ryan conceded at his deposition
that he saw some of the cartoons posted in the First Precinct 32
Room, where "everyone" who worked in the First Precinct regularly
went because it was "one of the main
rooms." Quinn and an independent witness, Sergeant Edward P.
Reilly, testified that Ryan also made comments about Quinn's
sexual orientation, for example, by calling him a "dick smoker."
Sergeant Reilly heard Ryan make other negative comments about
homosexuals. During a retirement party dinner, Ryan smacked Quinn
on the back of his head and said that he "didn't care" what his
sexual preference was.
Then Lieutenant, now Captain Allen acknowledged seeing the
posted cartoons depicting Quinn as gay, although he did not
recall seeing the specific cartoons introduced into evidence at
trial. Significantly, however, when he was shown some of the
cartoons at trial, Allen stated that he did not view them as
offensive, and that he would not have felt obligated to remove
them from the 32 Room bulletin board had he seen them posted
Quinn also told the jury that he was treated differently from
his fellow officers with regard to the manner in which his
superiors "over-supervised" him. Specifically, Quinn alleged that
supervisors such as Ryan and Allen would unfairly criticize him,
nit-pick his work, and direct him to rewrite his paperwork
without any valid reason. Sergeant Ryan also would "ride" many of
Quinn's calls, meaning that he would personally follow and
observe Quinn responding to calls and performing his official
duties. Lishansky testified that this was uncommon. According to
Ryan and Allen, they treated Quinn in this manner because of his
work performance and repeated lateness.
There was evidence of actual knowledge of this systematic
harassment by Quinn's supervisors. On several occasions, Quinn
complained to Precinct Commander Lishansky about Ryan and Allen
"over-supervising" him. In response, Lishansky asked the
supervisors to "cut him some slack," and at one point changed
Quinn's squad so that he would only periodically have to work
with Allen. In addition, Quinn wrote a letter to Police
Commissioner Kane complaining of "unfair treatment and
harassment." The Commissioner concededly took no action with
regard to the plaintiff's complaint.
Quinn told the jury that the harassment accelerated when, on or
about January 20, 1995, he became the target of a baseless
investigation by the Internal Affairs Unit of the Nassau County
Police Department, resulting in his involuntary transfer to the
Fourth Precinct, the furthest precinct from his home. During this
investigation, Quinn's car was followed by shifts of unmarked
police cars. Notwithstanding this intensive investigation, to
this date, no formal charges ever were filed against Quinn.
According to Quinn, soon after his transfer, members of the
First Precinct spread the word to the Fourth Precinct officers
that they should "watch out for Quinn." Quinn alleges that his
mistreatment continued at the Fourth Precinct.
On about May 29, 1995, Quinn was involuntarily transferred on a
"temporary" basis — and eventually on a permanent basis — from
the Fourth Precinct to the less proactive Court Liaison Office.
The plaintiff eventually left the police force in December 1996,
due to a line-of-duty back injury. When the plaintiff ended his
employment, the Police Department refused to grant him
termination pay, which is provided to officers upon completion of
employment. He was not given his termination pay because of the
pending "charges" against him. As stated above, these "charges"
are still pending, and may never be resolved.
Based on this factual scenario, substantially conceded by the
defendants, Quinn raised the following causes of action: (1)
Section 1983/Equal Protection; (2) Section 1983/First Amendment;
and (3) Section 1985/Conspiracy. The Court dismissed the Section
1983 First Amendment claim and submitted the Section 1983 Equal
Protection claim and the 1985 Conspiracy claim to the jury. The
jury returned a
special verdict, with the following express findings:
The plaintiff proved that, after June 6, 1994 (within
the statute of limitations period): (1) the members
and supervisors of the Nassau County Police
Department committed discriminatory acts
demonstrating an ongoing policy or practice of sexual
orientation discrimination against the plaintiff; and
(2) the members and supervisors of the Nassau County
Police Department committed specific and related
instances of sexual orientation discrimination
against the plaintiff, condoned by the supervisors of
the Nassau County Police Department. The plaintiff
proved that in the Nassau County Police Department
during the period in question, there was a custom,
policy or decision to permit sexual orientation
The plaintiff proved that he was subjected to severe
or pervasive unwelcome harassment by members and/or
supervisors of the Nassau County Police Department,
that the harassment complained of was based on his
sexual orientation, and that the claimed harassment
had the effect of unreasonably interfering with his
work performance and created an intimidating, hostile
or offensive work environment for him.
The plaintiff did not prove that Police Commissioner
Donald Kane and Daniel Lishansky knew of the sexual
orientation harassment of the plaintiff but did
nothing to stop it.
The plaintiff did not prove that the defendant
Lieutenant Joseph Allen participated in the sexual
orientation harassment of the plaintiff, but did
prove that Allen knew of the sexual orientation
harassment of the plaintiff and did nothing to stop
The plaintiff did not prove that defendant Edward
Gonzalez, a Lieutenant in the Fourth Precinct,
participated in the sexual orientation harassment of
The plaintiff proved that defendant Sergeant John
Ryan participated in the sexual orientation
harassment of the plaintiff, and that he knew of the
sexual orientation harassment of the plaintiff but
did nothing to stop it.
The plaintiff proved that two or more of the
individual defendants in this case were involved in a
conspiracy with a purpose to harass the plaintiff
because of his sexual orientation; that the action of
the defendants in the conspiracy were motivated, in
whole or in part, by a disliking or hateful
discriminatory attitude toward homosexuals; and that
Rice, Allen and Ryan were knowing members of the
The jury awarded Quinn the following: (1) $250,000
for emotional distress; $60,000 for loss of
termination pay; (2) $30,000 in punitive damages
against defendant Rice; (3) $20,000 in punitive
damages against defendant Allen; and (4) $20,000 in
punitive damages against defendant Ryan.
A. Motion for Judgment as a Matter of Law: The Standard
Rule 50 of the Federal Rules of Civil Procedure allows a
defendant, at any time before the case has been submitted to the
jury, to move for judgment as a matter of law. The Court may
grant the motion if the non-moving party has failed to adduce a
"legally sufficient evidentiary basis" to support his claim.
Fed.R.Civ.P. 50(a); Wimmer v. Suffolk County Police Dept.,
176 F.3d 125 (2d Cir. 1999) (citing Piesco v. Koch, 12 F.3d 332,
340 [2d Cir. 1993]). Judgment as a matter of law can be granted
where there is such a complete absence of evidence that no
reasonable juror could find in favor of the non-moving party.
See Samuels v. Air Transp. Local 504, 992 F.2d 12, 14 (2d Cir.
1993). Stated another way, the trial court may only grant such a
motion if, "viewed in the light most favorable to the nonmoving
party, `the evidence
is such that, without weighing the credibility of the witnesses
or otherwise considering the weight of the evidence, there can be
but one conclusion as to the verdict that reasonable [persons]
could have reached.'" Leopold v. Baccarat, Inc., 174 F.3d 261
(2d Cir. 1999) (quoting Cruz v. Local Union No. 3 of Int'l Bhd.
of Elec. Workers, 34 F.3d 1148, 1154-55 [2d Cir. 1994])
(quoting, in turn, Simblest v. Maynard, 427 F.2d 1, 4 [2d Cir.
1970]). In evaluating the merits of the motion, "the court must
view the evidence in a light most favorable to the nonmovant and
grant that party every reasonable inference that the jury might
have drawn in its favor." Hannex Corp. v. GMI, Inc.,
140 F.3d 194, 203 (2d Cir. 1998) (quotation omitted).
The Court will apply these principles in assessing the
defendants' motions for judgment as a matter of law.
B. Section 1983/Equal Protection
Section 1983 provides, in relevant part:
Every person who, under color [of law] . . .
subjects, or causes to be subjected, any citizen of
the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.
42 U.S.C. § 1983. This statute furnishes a cause of action for
the violation of federal rights created by the Constitution. See
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99
S.Ct. 1905, 60 L.Ed.2d 508 (1979). Therefore, a Section 1983
claim has two essential elements: (1) the defendant acted under
color of state law; and (2) as a result of the defendant's
actions, the plaintiff suffered a denial of his federal statutory
rights, or his constitutional rights or privileges. See
Eagleston v. Guido, 41 F.3d 865, 872 (2d Cir. 1994); Warren v.
Fischl, 33 F. Supp.2d 171, 176 (E.D.N.Y. 1999). Here, the
plaintiff asserts that the defendants, acting under color of
state law, violated his constitutional right to Equal Protection.
1. "Under Color of State Law" Element of a Section 1983 Claim
As a threshold issue, the Court must address the first of the
two elements of a Section 1983 claim, namely, whether the
individual defendants acted "under color of state law."
In the Court's view, "[t]here can be no question that
defendants [Donald Kane, the Commissioner of the Nassau County
Police Department; Lieutenant Edward Gonzalez; Deputy Chief
Daniel Lishansky; Sergeant John Ryan; and Lieutenant Joseph
Allen] are, in their personal capacities, amenable to suit under
[§ 1983], inasmuch as they were conducting themselves as
supervisors for a public employer and thus were acting under
color of state law." Annis v. County of Westchester,
36 F.3d 251, 253-55 (2d Cir. 1994) (citing Carrero v. New York City
Hous. Auth., 890 F.2d 569, 577 [2d Cir. 1989]).
The more difficult question arises with respect to Police
Officer Rice, the self-anointed "roaster" who takes credit for
creating many of the abusive and harassing materials at issue.
Rice asserts that he was not acting "under color of state law" in
creating these materials but, rather, was merely "making fun of
homosexuals on a non-official bulletin board located at the
Precinct." (Defendant Rice's Unpaginated Mem. of Law dated May
12, 1999, at 1). He maintains that his harassment of Quinn, no
matter how crude and constant, was "a private act." The Court is
constrained to agree.
The Supreme Court has stated that "[t]he traditional definition
of acting under color of state law requires that the defendant in
a § 1983 action have exercised power `possessed by virtue of
state law and made possible only because the wrongdoer is clothed
with the authority of state law.'" West v. Atkins, 487 U.S. 42,
49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting
United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031
). "In a case charging hostile environment . . .
harassment, `under color of state law' ordinarily requires that
the harasser be a supervisor or have some position of authority
or control over the plaintiff." Galvez v. Means, No. 95 Civ.
9479, 1996 WL 487962, *3 (S.D.N.Y. Aug.27, 1996) (citing
Woodward v. City of Worland, 977 F.2d 1392, 1401 [10th Cir.
1992] [holding police officers who sexually harassed dispatcher
employed by different government agency not liable under § 1983
absent some authority over dispatcher], cert. denied,
509 U.S. 923, 113 S.Ct. 3038 ; Poulsen v. City of North Tonawanda,
811 F. Supp. 884, 895 [W.D.N.Y. 1993]). "Otherwise, it is
difficult to establish that the abusive action was perpetrated
`under color of state law' rather than as an essentially private
act of sexual harassment." David v. City and County of Denver,
101 F.3d 1344, 1354 (10th Cir. 1996) ("to establish the state
action necessary to support a § 1983 [Fourteenth Amendment sexual
harassment claim], [the defendant] had to be plaintiff's
supervisor or in some other way exercise state authority over
her") (quotations and citations omitted), cert. denied, ___ U.S.
___, 118 S.Ct. 157, 139 L.Ed.2d 102 (1997).
Turning to the facts of this case, the Court finds, as a matter
of law, that Rice was only a co-employee of the plaintiff and was
not acting "under color of state law." Quinn has not alleged or
proven that Rice had any supervisory role or authority over his
employment. Accordingly, Quinn fails to state a claim against
Rice under 42 U.S.C. § 1983, and Rice's motion for a judgment as
a matter of law dismissing the Section 1983 cause of action as
against him is granted.
2. Denial of Equal Protection Element of a Section 1983 Claim
Having addressed the "color of state law" element of a Section
1983 claim, the Court addresses the second element, namely, the
showing that as a result of the defendants' actions, the
plaintiff suffered a denial of his Equal Protection rights.
a. Elements of an Equal Protection Violation
Generally speaking, the Equal Protection Clause of the
Fourteenth Amendment directs state actors to treat similarly
situated people alike. To establish an Equal Protection
violation, a plaintiff must prove purposeful discrimination
directed at an identifiable or suspect class. See Giano v.
Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). As the Second
Circuit explained in FSK Drug Corp. v. Perales, 960 F.2d 6, 10
(2d Cir. 1992) ("FSK"), an Equal Protection violation based
upon selective application of a facially lawful state regulation
is properly found when: (1) the person, compared with others
similarly situated, was selectively treated; and (2) the
selective treatment was motivated by an intention to discriminate
on the basis of impermissible considerations, such as race or
religion, to punish or inhibit the exercise of constitutional
rights, or by a malicious or bad faith intent to injure the
person. See also Crowley v. Courville, 76 F.3d 47, 52-53 (2d
Cir. 1996); Zahra v. Town of Southold, 48 F.3d 674, 683 (2d
Cir. 1995); LaTrieste Restaurant & Cabaret Inc. v. Village of
Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (quoting LeClair
v. Saunders, 627 F.2d 606, 609-10 [2d Cir. 1980], cert.
denied, 450 U.S. 959, 101 S.Ct. 1418 ); Equus Associates,
Ltd. v. Town of Southampton, 37 F. Supp.2d 582, 598 (E.D.N Y
1999). FSK involved a claim that the defendant selectively
enforced certain governmental regulations, but FSK's
formulation of the elements of an Equal Protection claim has been
applied by the Second Circuit to more general allegations of
"invidiously motivated selective treatment." See, e.g.,
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1352-53 (2d
b. Harassment in the Public Workplace as an Equal Protection
One manifestation of impermissible selective treatment is
employment discrimination in the public workplace. For example,
it is well-settled in this Circuit that "[s]ex discrimination [by
a government employer] is covered by § 1983 [as an Equal
Protection violation]." Annis, 36 F.3d at 254. In fact, the
Supreme Court declared two decades ago that individuals have a
constitutional right under the Equal Protection Clause to be free
from sex discrimination in public employment. See Davis v.
Passman, 442 U.S. 228, 234-35, 99 S.Ct. 2264, 60 L.Ed.2d 846
(1979). In refining this declaration, the Second Circuit has
explained that sexual harassment can, under certain
circumstances, amount to a constitutional tort. Annis, 36 F.3d
at 253-55 (citing Gierlinger v. New York State Police,
15 F.3d 32, 34 [2d Cir. 1994]) ("[I]n some circumstances a § 1983 claim
may be properly grounded on a violation of the Equal Protection
Clause of the Fourteenth Amendment based on sexual harassment in
the workplace."). "Such unjustified unequal treatment is exactly
the type of behavior prohibited by the Equal Protection clause as
interpreted in Davis v. Passman, 442 U.S. 228, 234-35, 99 S.Ct.
2264, 60 L.Ed.2d 846 (1979)." Bohen v. City of East Chicago,
Ind., 799 F.2d 1180, 1186 (7th Cir. 1986).
In Annis and subsequent cases, the Second Circuit provided
guidance regarding the extent to which sexual harassment equals
sex discrimination for purposes of Section 1983, and looked to
Title VII for guidance in resolving such claims. See Annis, 36
F.3d at 254; see also Genas v. State of New York Dep't of
Correctional Services, 75 F.3d 825, 832 (2d Cir. 1996); Carrero
v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir.
1989). The Second Circuit instructed in Annis, a case involving
sex discrimination involving a female police officer, that
"[w]hile we do not subscribe to a categorical view that sexual
harassment equals sex discrimination, we do agree that harassment
that transcends coarse, hostile and boorish behavior can rise to
the level of a constitutional tort." Id. (citing Gierlinger v.
New York State Police, 15 F.3d 32, 34 [2d Cir. 1994] ["[I]n some
circumstances a § 1983 claim may be properly grounded on a
violation of the Equal Protection Clause of the Fourteenth
Amendment based on sexual harassment in the workplace."]). The
Court elaborated, "[w]hen . . . sexual harassment includes
conduct evidently calculated to drive someone out of the
workplace, the harassment is tantamount to sex discrimination."
With respect to sexual harassment, a District Court in this
Circuit has noted that "[c]reating abusive conditions for female
employees and not for male employees is discrimination [under §
1983.]" Osier v. Broome County, 47 F. Supp.2d 311, 328 (N.D.N Y
1999) (quoting Bohen v. City of East Chicago, Indiana, 799 F.2d
at 1185). The District Court remarked that "a plaintiff can make
an ultimate showing of sex discrimination either by showing that
sexual harassment that is attributable to the employer under §
1983 amounted to intentional sex discrimination or by showing
that the conscious failure of the employer to protect the
plaintiff from the abusive conditions created by fellow employees
amounted to intentional discrimination." Id. (citing Bohen,
799 F.2d at 1187; Gierlinger v. New York State Police, 15 F.3d
at 34). In this context, "Section 1983 liability can be imposed
upon individual employers, or responsible supervisors, for
failing properly to investigate and address allegations of sexual
harassment when through this failure, the conduct becomes an
accepted custom or practice of the employer." Gierlinger v. New
York State Police, 15 F.3d at 34 (citing Bohen v. City of East
Chicago, Ind., 799 F.2d at 1189).
c. Sexual Orientation Harassment as an Equal Protection
In the Court's view, harassment in the public workplace against
based on their sexual orientation falls within the ambit of
Annis and its progeny. Just as Annis recognized that
harassment of women in the public workplace that transcends
coarse, hostile and boorish behavior can rise to the level of a
constitutional tort, so too, in the Court's view, does a hostile
work environment directed against homosexuals based on their
sexual orientation constitute an Equal Protection violation.
In so finding, the Court notes that in 1996, the Supreme Court
struck down, on Equal Protection Clause grounds, a state
constitutional amendment categorically prohibiting gay men and
lesbians from obtaining state or local legal protection from
discrimination based on their sexual orientation. See Romer v.
Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). The
Romer Court established that government discrimination against
homosexuals, in and of itself, violates the Equal Protection
Clause. Romer, 517 U.S. at 633-34, 116 S.Ct. 1620, 134 L.Ed.2d
In Romer, the issue before the Supreme Court was whether an
amendment to Colorado's state constitution, which prohibited any
legislation or judicial action designed to protect the status of
a person based on sexual orientation, violated the Fourteenth
Amendment's Equal Protection Clause. The Supreme Court had little
difficulty finding that it did. The Court noted that under the
ordinary deferential Equal Protection standard — that is, the
"rational basis standard" — the Court would "insist on knowing
the relation between the classification adopted and the object to
be obtained." Id. at 632. The Court explained that this "link"
between classification and the objective "gives substance to the
Equal Protection Clause." Id. This "link" was lacking in
Romer. In reaching its conclusion, the Court observed that the
"inevitable inference" from a law of this sort is that it is
"born of animosity toward the class of persons affected." Id.
at 634, 116 S.Ct. 1620. The Court characterized the amendment as
"a status-based enactment divorced from any factual context from
which we could discern a relationship to legitimate state
interests." Id. at 635, 116 S.Ct. 1620; see also City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct.
3249, 87 L.Ed.2d 313 (1985).
Several Courts have recently considered the question of Equal
Protection and sexual orientation and applied the "rational basis
test" utilized in Romer. These cases, which typically analyzed
the constitutionality of the United States Military's "Don't Ask,
Don't Tell" policy, examined whether the forced separation from
service of individuals who engage in a homosexual act or who
state that they are homosexual violates the Equal Protection
Clause. In concluding that the policy does not violate the Equal
Protection Clause, these Courts have relied on the uniqueness of
the military setting and the deference accorded to military
decisions. See, e.g., Able v. United States, 155 F.3d 628,
632-35 (2d Cir. 1998); Holmes v. California Army Nat'l Guard,
124 F.3d 1126, 1132-1136 (9th Cir. 1997); Richenberg v. Perry,
97 F.3d 256, 260-61 (8th Cir. 1996), cert. denied, ___ U.S.
___, 118 S.Ct. 45, 139 L.Ed.2d 12 (1997); Thomasson v. Perry,
80 F.3d 915, 928 (4th Cir.), cert. denied, 519 U.S. 948, 117
S.Ct. 358, 136 L.Ed.2d 250 (1996). Nevertheless, as in Romer,
these Courts recognized that government action in a civil rather
than a military setting cannot survive a rational basis review
when it is motivated by irrational fear and prejudice towards
homosexuals. See, e.g., Able, 155 F.3d at 634-35 (citing City
of Cleburne, 473 U.S. at 448, 105 S.Ct. 3249).
Under the above cases, and viewing the proof in a light most
favorable to Quinn, the plaintiff has introduced more than
sufficient evidence to support a claim for an Equal Protection
violation based on a workplace environment that transcended
hostile, coarse and boorish behavior, and which was motivated by
an invidious, irrational fear and prejudice towards homosexuals.
Section 1983 liability can be imposed upon the employer, the
Police Department, and the remaining defendant supervisors, for
failing to properly investigate and address Quinn's complaints,
and permitting the acts of harassment which the supervisors
either observed or themselves perpetrated. In this case, a jury
reasonably could find all of these facts. A jury of reasonable
persons could conclude that "[t]hrough the [supervisors']
failures and actions, the [harassing] conduct [became] an
accepted custom or practice of the employer." Gierlinger v. New
York State Police, 15 F.3d at 34 (citing Bohen v. City of East
Chicago, Ind., 799 F.2d at 1189). Like the enactment at issue in
Romer, conduct by police department officers, supervisors and
policy makers contributing to, failing to address, and outright
condoning harassment of homosexuals amounts to impermissible
"status-based [conduct and policy] divorced from any factual
context from which we could discern a relationship to legitimate
state interests." Romer, 517 U.S. at 635, 116 S.Ct. 1620. Such
harassment by Nassau County Police Department personnel cannot
survive a rational basis review when it is motivated by
irrational fear and prejudice towards homosexuals. See, e.g.,
Able, 155 F.3d at 634-35 (citing City of Cleburne, 473 U.S. at
448, 105 S.Ct. 3249). The "inevitable inference" from the Quinn's
mistreatment is that it was "born of animosity toward the class
of persons affected," Romer, supra, at 634, 116 S.Ct. 1620,
The Court disagrees with the defendants' contention that
Quinn's claims are barred under the recent opinion by a Judge in
this District in Simonton v. Runyon, 50 F. Supp.2d 159 (E.D.N Y
1999). In Simonton, the District Court granted the defendants'
motion to dismiss the Title VII complaint of a former employee of
the United States Postal Service, who alleged a hostile work
environment stemming from mistreatment he allegedly received from
co-workers and supervisors based upon his sexual orientation. The
District Court held that Title VII does not provide a cause of
action for harassment or discrimination based upon sexual
orientation, reasoning that such conduct is not discrimination
"based upon sex," is not otherwise included in the statute, and
therefore, does not state a claim under Title VII. Simonton, 50
F. Supp.2d at 160-63.
In so holding, the District Court stated that in Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998,
140 L.Ed.2d 201 (1998), which held that a same-sex harassment is
actionable under Title VII, the Supreme Court "never mentioned
the issue of whether same sex harassment encompassed harassment
based [on] sexual orientation." Simonton, 50 F. Supp.2d at
162-63. In the Simonton Court's view, the "failure to mention
the issue [of homosexuality discrimination in Oncale] leaves
undisturbed the line of cases holding that discrimination based
upon a plaintiff's sexual orientation . . . is not discrimination
based upon sex and therefore does not state a claim under Title
VII." Simonton, 50 F. Supp.2d 159at 162-63. The cases relied
upon consisted largely of Title VII opinions from other Circuits.
See Dillon v. Frank, 952 F.2d 403, 1992 WL 5436 (6th Cir.
Jan.15, 1992) (Title VII does not provide a remedy for hostile
environment created by taunts aimed at plaintiff's
homosexuality); Williamson v. A.G. Edwards and Sons, Inc.,
876 F.2d 69, 70 (8th Cir. 1989) (Title VII does not prohibit
discrimination based upon homosexuality), cert. denied,
493 U.S. 1089, 110 S.Ct. 1158, 107 L.Ed.2d 1061 (1990); Ulane v.
Eastern Airlines, Inc., 742 F.2d 1081, 1085-87 (7th Cir. 1984)
(Title VII does not cover discrimination allegedly based upon
fact that plaintiff was a transsexual), cert. denied,
471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304 (1985).
Although the District Court acknowledged that the Second
Circuit "has not squarely decided the issue of sexual orientation
discrimination under Title VII either before or after Oncale,"
the Court relied on DeCintio v. Westchester County Med. Ctr.,
807 F.2d 304, 308 (2d Cir. 1986)
in support of its view. Simonton, 50 F. Supp.2d at 162-63. In
DeCintio, the male plaintiff claimed that he was the victim of
sexual discrimination because his employer gave preferential
treatment to a female with whom the employer was romantically
involved. Holding that any preferential treatment was based, not
upon plaintiff's sex, but upon the female employee's "sexual
liaison" with her employer, the Second Circuit concluded that the
plaintiff had not been discriminated against because of his sex.
In rejecting the plaintiff's Title VII claim in DeCintio, the
Second Circuit cited cases which declined to extend Title VII
protection to claims of discrimination based upon sexual
orientation. See DeCintio, 807 F.2d at 307. The District Court
in Simonton also relied on two recent District Court opinions
from other Circuits. See Klein v. McGowan, 36 F. Supp.2d 885,
889-90 (D.Minn. 1999) (post-Oncale hostile environment claim
under Title VII based upon plaintiff's perceived homosexuality is
not harassment based upon sex); Higgins v. New Balance Athletic
Shoe, Inc., 21 F. Supp.2d 66, 74-75 (D.Maine 1998) (post-Oncale
decision dismissing hostile environment Title VII claim alleging
discrimination based upon plaintiff's homosexuality).
In this Court's view, the District Court's decision in
Simonton, while well-written and thoughtful, is not
controlling, because it was in the context of Title VII, not
Section 1983. Title VII expressly defines those classes of people
which fall under its protection, and states that discrimination
in employment is prohibited against "any individual . . . because
of such individual's race, color, religion, sex or national
origin." 42 U.S.C. § 2000e-2(a)(1). This Court need not address
the issue whether discrimination "because of sex" under Title VII
encompasses discrimination "because of sexual orientation." The
Equal Protection Clause of the Fourteenth Amendment is not so
limited by express category. On the contrary, as noted above, the
Equal Protection Clause protects similarly situated individuals
from invidious and irrational discrimination based on sexual
Accordingly, the Court denies the remaining defendants' motions
for judgment as a matter of law dismissing the Section 1983/Equal
C. § 1985(3)/Conspiracy
42 U.S.C. § 1985(3) provides, in relevant part:
If two or more persons in any state . . . conspire .
. . for the purpose of depriving, either directly or
indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges
and immunities under the laws . . . the party so
injured or deprived may have an action for the
recovery of damages occasioned by such injury or
deprivation, against any one or more of the
Quinn contends that the defendants acted in concert with each
other to discriminate against him based on his sexual
orientation. Aside from the defendants' other arguments
concerning their Section 1983 liability, the main issue with
respect to the Section 1985(3) cause of action is whether the
claim is barred by the intracorporate conspiracy doctrine.
Under the intracorporate conspiracy doctrine, officers, agents
and employees of a single corporate entity are legally incapable
of conspiring together. See Solla v. Aetna Health Plans of New
York Inc., 14 F. Supp.2d 252, 257 (E.D.N.Y. 1998). The Court
notes that the Supreme Court has yet to address the issue of an
intracorporate conspiracy in the context of a Section 1985(3)
claim. See Hull v. Shuck, 501 U.S. 1261, 111 S.Ct. 2917, 115
L.Ed.2d 1080 (1991) (White, J. and Marshall, J. dissenting on
denial of petition for writ of cert.) ("We expressly left open
that issue in Great American Fed. Sav. & Loan Assn. v. Novotny,
442 U.S. 366, 372 n. 11 "). A split of authority remains
among the circuits with respect to this issue. Id. (citations
the Second Circuit has imported the doctrine into Section 1985
jurisprudence in this regard, and has dismissed a claim of
conspiracy against officers and employees of a non-profit
institution. See Herrmann v. Moore, 576 F.2d 453 (2d Cir.),
cert. denied, 439 U.S. 1003, 99 S.Ct. 613, 58 L.Ed.2d 679
(1978). "Intracorporate immunity has also been extended to the
context of conspiracies between a public entity and its
employees." Rini v. Zwirn, 886 F. Supp. 270, 292 (E.D.N.Y. 1995)
(applying intracorporate conspiracy doctrine in the context of
At first blush, the intracorporate conspiracy doctrine would
appear applicable here, where all of the individual defendants
are employees of a single entity, the Nassau County Police
Department. However, "[a]n exception to the intracorporate
conspiracy doctrine applies to individuals within a single entity
when they are pursuing personal interests wholly separate and
apart from the entity." Bond v. Board of Education of the City
of New York, 1999 WL 151702, *1 (E.D.N.Y. March 17, 1999)
(citing Roniger v. McCall, 22 F. Supp.2d 156, 168 [S.D.N Y
1998]; Solla, 14 F. Supp.2d at 257-59); see also Rini v.
Zwirn, 886 F. Supp. 270, 293 (E.D.N.Y. 1995) (denying a motion to
dismiss a Section 1985 claim where a town employee, acting as an
individual, conspired with other town employees); Agugliaro v.
Brooks Bros., Inc., 802 F. Supp. 956, 963 (S.D.N.Y. 1992)
(stating that the plaintiff may maintain a Section 1985 claim
against a corporation and its agents where the plaintiff alleges
that defendants were acting upon their own motives); cf. Yeadon
v. New York City Transit Auth., 719 F. Supp. 204, 212 (S.D.N Y
1989) (rejecting defense that conspiracy within a corporation
cannot exist in the context of a Section 1985 claim where a
plaintiff adequately alleges a series of separate discriminatory
acts by the corporate entity and its agents and where a plaintiff
adequately alleges that each defendant possessed an independent,
personal conspiratorial purpose). Whether the doctrine applies to
the facts present here depends on whether each and every
defendant was acting in furtherance of the Police Department's
interests, or whether, instead, their conduct was motivated by a
Here, the Court already has found that Rice was acting in a
personal, rather than official capacity, in abusing Quinn based
on his sexual orientation. For that matter, Rice admits — indeed,
advocates, — that he was acting not "under color of state law" or
in furtherance of the Police Department's interests when
harassing the plaintiff. The Court therefore finds, as a matter
of law, that this case presents the "personal interest" exception
to the intracorporate conspiracy doctrine. Accordingly, the Court
denies all of the defendants' motions for judgment as a matter of
law dismissing the Section 1985 conspiracy claim.
D. Section 1983/First Amendment
Quinn also contends that he was harassed and transferred to a
different precinct in retaliation for his filing a Notice of
Claim against the defendants.
On or about March 1, 1995, Quinn served and filed a Notice of
Claim against defendants Nassau County Police Department,
Lishansky, and Ryan, as well as several police department
personnel who are not parties to this lawsuit. The Notice of
Claim describes the claim as follows:
Defendants engaged in a pattern of harassment,
intimidation, [and] discrimination based upon
claimant's medical disability, conspiracy,
malicious prosecution, abuse of process, violated and
ignored the rules and regulations governing Police
Officers in the County of Nassau, intimidation in the
creation of an unfit working environment, intentional
infliction of emotional distress, mental and physical
abuse. Furthermore, that
claimant's superiors participated, condoned, and
encouraged such actions.
(Notice of Claim) (emphasis added).
According to Quinn, after filing the Notice of Claim he "became
the victim of increased harassment and discrimination as a direct
result of his attempt to secure his Constitutional Rights." With
respect to this free speech cause of action, Quinn seemingly
asserts that he was deprived of his right to petition the
government for redress when the defendants, acting under color of
state law, retaliated against him for filing a Notice of Claim.
To sustain his Section 1983 retaliation cause of action based
on a First Amendment free speech claim, the plaintiff must
establish that: (1) his comments implicated a matter of public
concern; and (2) his protected speech was a "substantial or
motivating factor" behind the defendants' retaliation. See
Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996) (quoting
Frank v. Relin, 1 F.3d 1317, 1328 [2d Cir. 1993]); Piesco v.
Koch, 12 F.3d 332, 342 (2d Cir. 1993).
The "right to petition the government for redress of
grievances, which is an assurance of a particular freedom of
expression, . . . is subject to the same constitutional analysis
as the right to free speech." White Plains Towing Corp. v.
Patterson, 991 F.2d 1049, 1059 (2d Cir.), cert. denied,
510 U.S. 865, 114 S.Ct. 185, 126 L.Ed.2d 144 (1993) (quoting Wayte
v. United States, 470 U.S. 598, 610 n. 11, 105 S.Ct. 1524
); see also Ezekwo v. NYC Health & Hosp. Corp.,
940 F.2d 775, 778 (2d Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 657,
116 L.Ed.2d 749 (1991). The First Amendment protects speech that
involves matters of public concern. See Connick v. Myers,
461 U.S. 138, 147, 154, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983);
Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir. 1991), cert.
denied, 504 U.S. 911, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992).
Whether speech is constitutionally protected, namely of public
concern, is a question of law for the Court to decide. Connick,
461 U.S. at 148 n. 7, 103 S.Ct. 1684.
On the one hand, the "Second Circuit has ruled that an EEOC
complaint based on race and sex discrimination is not a matter of
public concern, and therefore, is not protected speech under the
First Amendment." Lehmuller v. Incorporated Village of Sag
Harbor, 944 F. Supp. 1087, 1095 (E.D.N.Y. 1996) (citing Ezekwo,
940 F.2d at 778, 781). "[W]hen an employee speaks not as a
citizen upon matters of public concern, but instead as an
employee upon matters only of a personal interest, absent the
most unusual circumstances, a federal court is not the
appropriate forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction to the
employee's behavior." Connick, 461 U.S. at 147, 103 S.Ct. 1684.
On the other hand, the Second Circuit has concluded that where
complaints of employment discrimination "implicate system-wide
discrimination they . . . unquestionably involve a matter of
`public concern.'" Saulpaugh v. Monroe Community Hosp.,
4 F.3d 134, 143 (2d Cir. 1993), cert. denied, 510 U.S. 1164, 114 S.Ct.
1189, 127 L.Ed.2d 539 (1994). Thus, the filing of the Notice of
Claim may constitute protected speech if there is an "indication
that the plaintiff `wanted to debate issues of sex
discrimination,' that [the proposed] suit sought `relief against
pervasive or systemic misconduct by a public agency or public
officials,' or that [the possible] suit was `part of an overall
effort . . . to correct allegedly unlawful practices or bring
them to public attention.'" Id. (quoting Yatvin v. Madison
Metro. School Dist., 840 F.2d 412, 420 [7th Cir. 1988]).
1. The "Speech of Public Concern" Requirement
The initial question of law for this Court to determine is
whether Quinn was speaking on matters of public concern when he
filed the Notice of Claim. Whether an employee's speech addresses
matter of public concern "must be determined by the content, form
and context of a given statement, as revealed by the whole
record." Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. The
statement at issue will "not be considered in a vacuum; the
manner, time, and place of the employee's expression are
relevant, as is the context in which the dispute arose." Rankin
v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315
(1987). As the Second Circuit has observed, the Supreme Court has
declined to establish a general standard against which such
statements may be judged, recognizing that there is a great
variety of fact situations in which disputes regarding allegedly
protected speech may arise. See Blum v. Schlegel, 18 F.3d 1005
(2d Cir. 1994). The Second Circuit commented that a matter is one
of public concern when the speaker's interest in it arises from
the speaker's status as a public citizen, as opposed to his or
her status as a public employee. Blum, 18 F.3d at 1012.
In the Court's view, the Notice of Claim at issue does not
implicate matters of public concern. First, Quinn's Notice of
Claim was brought in the context of a private employment dispute
and to further his own employment interest. As such, Quinn's
First Amendment interest was weakened by the context of his
speech. See White Plains Towing Corp. v. Patterson, 991 F.2d at
1060 (" . . . Cherico's First Amendment interest in filing his
shortlived personnel complaint would be weak if, as the trial
record strongly suggests, he took that action solely to obtain
additional referrals."). Second, the Notice of Claim does not
seek to bring to public light the County's alleged sexual
orientation discrimination which "may well be a matter of
interest to the community." Lehmuller v. Incorporated Village of
Sag Harbor, 982 F. Supp. 132, 135 (E.D.N.Y. 1997). Instead, it
raises an entirely different theory, namely, alleged
discrimination based on medical disability. Indeed, the Notice of
Claim mentions nothing about sexual orientation discrimination.
For these reasons, the Court finds, as a matter of law, that
Quinn's filing a Notice of Claim was not constitutionally
protected activity under the First Amendment.
2. The "Substantial" or "Motivating Factor" Requirement
The Court finds that the First Amendment claim fails for
another reason: Quinn has not adduced evidence that his speech
regarding an alleged medical disability was at least a
substantial or motivating factor in the retaliatory actions
allegedly taken. See White Plains Towing Corp., 991 F.2d at
1058 (citing Mt. Healthy City School Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 ).
Even viewing the evidence in a light most favorable to the
plaintiff, there was no proof at trial that the defendants'
alleged retaliatory actions were motivated by Quinn speaking out
regarding his "medical disability." Instead, Quinn's entire
theory was that he was discriminated against based on sexual
orientation, a contention not set forth in the Notice of Claim.
For these reasons, the Court grants the defendants' motions for
judgment as a matter of law dismissing the cause of action based
on Section 1983/First Amendment.
E. The Defendants' Motion for Remittitur
Finally, the Court considers the defendants' oral, post-verdict
motions for remittitur, seeking an order setting aside the jury's
award of $250,000 in damages for emotional distress as excessive.
"It is well settled that calculation of damages is the province
of the jury." Walz v. Town of Smithtown, 46 F.3d 162, 170 (2d
Cir. 1995) (quoting Ismail v. Cohen, 899 F.2d 183, 186 [2d Cir.
1990]). The district court has authority to enter a conditional
order of remittitur, compelling a plaintiff to choose between
reduction of an excessive verdict and a new trial, only
where "`the award is so high as to shock the judicial conscience
and constitute a denial of justice.'" Kirsch v. Fleet Street,
Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (citing and quoting
Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433,
116 S.Ct. 2211, 135 L.Ed.2d 659 ; O'Neill v. Krzeminski,
839 F.2d 9, 13 [2d Cir. 1988] [additional citations omitted]).
Here, the defendants ask the Court to find that the emotional
distress component of the jury's verdict "shocks the conscience."
In support of this theory, the defendants assert that $250,000 in
damages for emotional distress is disproportionate to the
emotional injuries the plaintiff actually suffered as a result of
the sexual orientation discrimination. The defendants note that
the plaintiff did not begin seeking mental health counseling with
a social worker until he had a consultation with an attorney
about his case. Also, the defendants emphasize that there was no
testimony showing that Quinn will have permanent emotional scars
because of the discrimination. The Court disagrees.
The Court has considered damages awards in similar cases in
assessing the propriety of the amount of damages awarded here.
See Blissett v. Coughlin, 66 F.3d 531, 536 (2d Cir. 1995)
(citing Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740,
752-53 [2d Cir. 1984]). The award of $250,000 for emotional
distress is in line with similar damages awards in this Circuit.
See, e.g., Hughes v. Patrolmen's Benevolent Assoc. of City of
New York, Inc., 850 F.2d 876, 884 (2d Cir.) (allowing award of
$575,000 against defendant police officers for protracted course
of harassment against fellow officer), cert. denied,
488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988). Quinn's testimony,
which his social worker corroborated, as to the emotional
distress he suffered from years of chronic, pervasive,
humiliating and severe sexual orientation harassment adequately
supports the award of compensatory damages in this case. This
award does not shock the Court's conscience.
Having reviewed the defendant Rice's submission — the only
Memorandum of Law submitted to the Court — and heard oral
argument, and for the reasons stated above, it is hereby
ORDERED, that the Court grants the defendant Rice's motion
for judgment as a matter of law dismissing the Section 1983/Equal
Protection claim against him; and it is further
ORDERED, that the Court denies the remaining defendants'
motions for judgment as a matter of law dismissing the Section
1983/Equal Protection claim; and it is further
ORDERED, that the Court grants the defendants' motions for
judgment as a matter of law dismissing the Section 1983/First
Amendment claim; and it is further
ORDERED, that the Court denies all of the defendants' motions
for judgment as a matter of law dismissing the Section
1985/conspiracy claim; and it is further
ORDERED, that the defendants' motions to set aside the
emotional distress award of $250,000, as being excessive, is
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